Whose expert is an expert?

The empowered committee of the Supreme Court and the Central Ministry of Environment and Forests are engaged in a dispute to define the expertise
needed to oversee conversion of forest land to non-forest use.
Kanchi Kohli
notes that the MoEF's recent record of clearing questionable projects does not inspire confidence in its stance.

The months of December 2006 and January 2007 saw one of the fieriest debates the Chief Justice's Court in New Delhi. National newspapers reported on the row between the Supreme Court's three judge bench in the T N Godavarman case and the Ministry of Environment and Forests (MoEF) over the composition of the Forest Advisory Committee (FAC) see
here and here. These were bitter
exchanges, with strong comments; the government's position amounted to an outright challenge of the court's orders relating to forests during the last 10 years.

But why did the government mount such opposition? What is the importance of the Forest Advisory Committee?

What is the FAC?

Any activity which requires the diversion of forest land for non-forest use must first be cleared by the MoEF. This is clearly specified in the procedures prescribed in the Forest Conservation Act, 1980. This process also stipulates a role for the Forest Advisory Committee (FAC) before the grant of clearance. The MoEF refers every proposal with complete documentation to the FAC, and the committee then takes a view on the following parameters:

Whether the forest land to be converted is part of a nature reserve, national park wildlife sanctuary, biosphere reserve or forms part of the habitat or any endangered or threatened species of flora and fauna or of an area lying in severely eroded catchment;

Whether the use of any forest land is for agricultural purposes or for the rehabilitation of persons displaced from their residences by reason of any river valley or hydro-electric project;

Whether all feasible alternatives have been considered by the State Government or the other authority and that the required area is the minimum needed for the purpose; and

Whether the State Government or the other authority undertakes to provide at its cost for the acquisition of land of an equivalent area and afforestation.

Following this scrutiny, the FAC advises the MoEF on whether the forest land should be allowed to be diverted, and if yes, then under what conditions and restrictions.

The origins of the dispute

The Supreme Court's monitoring body on forest matters - the Centrally Empowered Committee - and amicus cuiae Harish Salve had recommended that
the following people be included by the MoEF in the FAC. The persons recommended by the court included Belinda Wright (WPSI), Bittu Sahgal (Sanctuary Asia), Shyam
Chainani (Bombay Environment Action Group), P K Manohar (a lawyer who has filed cases related to forest issues), Claude Alvares (Goa Foundation), S C Sharma (a
retired forest officer), P K Sen (presently with Ranthambhore Foundation), Pranay Waghray (Wildlife Activist) and V R Chitrapoo (also a retired forest officer). All
of the above persons have years of experience on forest, environment and wildlife issues, which gives them enough expertise enough to be on the FAC; they are well
known among environmental research and activist groups.

The MoEF, however, refused to accept the credibility of the persons suggested by the CEC. In the ministry's last submission to the court on 3 January 2007, the MoEF's Secretary, Pradipto Ghosh states that none of these persons fit into the criteria of 'experts' laid out in MoEF's guidelines, and therefore they cannot be on the FAC (see: http://envfor.nic.in/rti/order-guidelines.pdf). Conveniently, the ministry seems to have forgotten that nearly all of these persons have served on MoEF's own committees in the past, be these expert committees for environment clearances of projects or others related to hazardous wastes. Instead, the MoEF proposed the names of J S Singh, Centre of Advanced Botany at Benaras Hindu Universtiy, A S Dogra and M. Kamal Naidu (retired forest officer). These individuals too are well credentialled, but for the MoEF, their academic background gives them the edge over those proposed by the CEC.

It is very interesting to note that the issue of the FAC composition comes at the same time when the decision on controversial proposal for mining by Vedanta in Niyamgiri Hills in Orissa, rests on the final decision of the FAC.
(see here)

And so the compositon of the FAC became a matter of dispute between the MoEF and the CEC. The Court has now stayed the reconstitution of the FAC until the dispute is resolved.

Expertise and the MoEF

Who is an expert? While differences can exist on this, the Court first sought to clarify whether the MoEF has been consistent in defining expertise, or if it had selectively applied its criteria for various appointments. On 5 January 2007, when the case was heard again after the court reopened from its vacation, the then Chief Justice, Y K Sabharwal raised two points of clarification. First, he asked whether the MoEF has been following similar guidelines in the constitution of other authorities and committees. He also asked the MoEF to clarify its view, with specific reference to appointments made since and before 2004 (when the guidelines for appointments were framed) separately. The court also felt that it would be appropriate for the CEC to respond to the affidavit filed by MoEF, and to allow time for this the stay on the constitution of the FAC was extended.

The 2004 guidelines of the MoEF contain the following opening lines, "In the past, inadequate attention has been paid to the question of whether the non-official persons considered for appointment to these bodies have the relevant background or experience for the role. As a result, the decisions and/or advice received from these bodies may have been sub-optimal. Accordingly, it is advisable to prepare and adopt Guidelines for such appointments." The guidelines include a series of definitions, including how one can define an expert, a professional, a professional voluntary organization, and so on. Most of these definitions and criteria stress the need for formal university degrees and academic qualifications. This definition, however, leaves out many individuals whose long experience in the forestry sector may give adequate advisory capacity, simply because they have not pursued a formal degree in the field.

What now?

Could the composition of expert committees determine whether clearances sought for particular projects are given or denied? This is the question at the heart of the dispute, although no allegation about it was specifically raised. In recent years, with increasing criticism of the MoEF's role in providing environmental clearances for large projects, the composition of its expert committees has come under attack
(see here). For instance, there has been a lot of questioning on the composition and
decisions of the 7 expert committees
related to environment clearance of development and industrial projects under the Environment Impact Assessment Notification. Despite this being pointed out to the MoEF, this has not been addressed so far. The MoEF's inaction on this front suggests that it too is aware the composition of committees can be crucial to its choices.

All the persons suggested by the CEC as potential members of the FAC are capable of safeguarding the environment, and have shown this repeatedly in
the past. The MoEF could have welcomed them, and made changes in the composition of the FAC if it felt that the committee needed to be better balanced to include
social concerns, or factors specific to forest management. Instead, the ministry has insisted on its own preferred members for the FAC, in effect rejecting the very
expertise it once held up. Will the court permit this? It will be surely very interesting to see which direction this case takes; the outcome will have an important
bearing on future decisions within the MoEF, with significant potential to impact all our lives.

Kanchi Kohli30 January 2007

Kanchi Kohli is based in New Delhi and a member of the Kalpavriksh Environmental Action Group.

V.K.Venugopal
The article ignores one crucial but central issue. Who decides policy matters in a democracy? Clearly, it is the Executive and the Legislature that are constitutionally empowered to take policy decisions and select personnel for implementing them. The Courts can intervene only when the policy and / or the appointments made by the Executive violate the Constitution, Law, procedure or natural justice.
No one has made out any case that the panel proposed by MoEF violates any of these. The CEC actually nominating specific persons to the FAC is a serious intrusion into Executive turf upsetting the balance of the Constitution.
If the Court finds that the FAC constituted by MoEF is invalid, it can quash those appointments but Courts are NOT empowered to direct the Government to appoint persons nominated by it or its CEC.
Ignoring such basic Constitutional proprieties does not augur well for democracy. Enthusiasm to protect environment should not make us blind to the larger picture.

January 31 2007, 6:13 AM ·
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Kanchi Kohli
Thank you for your response. I largely agree with your viewpoint. However, we need to see this in the light of the changing role of the executive in the last few years. The ministry of environment and forests does not seem to be interested in environment conservation and one can prove that in many ways. I am not saying that the courts have been any better off in this regard and have the authority to suggest things to the executive. However, I would request you to delve deeper into the record of the MoEF. The MoEF should have been the champion of the environment. We also need to see the real reasons why MoEF is not agreeing to the persons suggested by the CEC. These persons are capable of taking strong positions in favour of the forests, which the MOEF is busy granting clearances for.
I wish the executive was performing its function in a truly participatory manner and this squabble had never reached the court of law.
Regards, and thanks once again for your feedback.
Kanchi

February 01 2007, 1:47 PM ·
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Geetanjoy Sahu
I strongly agree with your statement that the MoEF is scared to appoint people suggested by CEC who can give strong and genuine reasons in favour of forest protection. However, when both institutions are not able to find out solutions or at least some short of consensus, then how long will this kind of confrontation continue, and who is going to pay the price for it?

Dr Ram Prasad
The normal committees are constituted by govt and thus the action of MoEF is justified. Empowered Committee has outlived its mandate as the memebers appear to have tenure till death. Nobody is looking into as to how long they will be there giving impractical suggestions of who should be in committees. In fact they have been creating this kind of rift which could have been avoided had they been rational in their approach.

February 04 2008, 10:17 AM ·
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Mujahid Ziaee
EXPERTS are people who in time of need have made daring changes that are always questioned, but are Environmentally & Scientifically 'always'Correct.
The Committee should comprise of the above mentioned people - Activists, who have shown their worth by their actions!
Mujahid Ziaee
MSc Environmental Conservation (U.K.)
Nallamai Foundation - Member

April 08 2009, 10:40 AM ·
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